Wiltshire v Commissioner of Police, New South Wales Police

[2005] NSWADT 75

CITATION:	Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
DIVISION:	General Division
PARTIES:	APPLICANT Colin Douglas Wiltshire RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043239
HEARING DATES:	19/10/2004, 15/12/2004
SUBMISSIONS CLOSED:	12/15/2004
DATE OF DECISION:	04/06/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996 Weapons Prohibitions Act 1998
CASES CITED:	Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91
REPRESENTATION:	APPLICANT In person RESPONDENT T Venditti, advocate
ORDERS:	1. The decision of the Commissioner of Police, New South Wales Police Service to refuse Mr. Wiltshire’s firearms licence application is affirmed

1 Mr Colin Wiltshire was issued with a Category AB firearms licence under the Firearms Act 1996 (“the Act”) on 9 February 1999. The licence was suspended on 17 September 2003 and expired on 12 February 2004. Mr Wiltshire lodged a new application for a Category AB firearms licence on 18 March 2004. This application was refused on 5 May 2004.

2 Mr Wiltshire sought an Internal Review of the refusal decision. That review was undertaken on 23 June 2004 and it was determined that the original decision was to stand. On 26 July 2004 Mr Wiltshire applied to this Tribunal for a review of the Commissioner's decision to refuse his licence application.

The Commissioner's case

3 Sergeant Venditti appeared for the Commissioner and relies on the brief of evidence filed in the matter. The essence of the Commissioner’s case is that it is not in the public interest for Mr Wiltshire to continue to hold a firearms licence. He points to the records maintained on the Computerised Operational Policing System (“COPS”) that records a number of issues relating to Mr Wiltshire. He concedes that Mr Wiltshire has no previous adverse events or convictions but contends that Mr Wiltshire’s conduct in leaving firearms and ammunition accessible, in being in possession an unregistered firearm, and in being in possession of a prohibited weapon without authorisation, raises concern about his ability to act in a responsible manner with respect to firearms.

4 The Commissioner’s brief of evidence contains statements from a number of individuals who have given evidence in relation to events that are said to have taken place between 6 and 9 September 2003. In particular the Commissioner relies on statements by Ms Wendy Wiltshire (“Wendy”); Mr Wiltshire’s and Wendy’s son Colin James Wiltshire (“James”); Senior Constable Sandral of Corowa Police and Mr Jason Burns. Wendy and S/C Sandral each attended the hearing and were cross-examined. James was called for cross-examination but was excused on the basis of a medical certificate that indicated he should not attend. Jason Burns was requested to appear for cross-examination and he had indicated that he would do so. Accordingly no summons was issued for his attendance and he did not attend. While I was not satisfied with the explanation given for his non-attendance I determined that the matter should proceed without his attendance. I also determined that the weight given to his statement should reflect this non-attendance.

5 The evidence for the Commissioner is in relation to claims of violence made against Mr Wiltshire by Wendy and in relation to the existence and storage of various firearms located at Mr Wiltshire’s and Wendy’s premises (“the premises”).

6 On 9 September 2003, on Wendy's invitation, S/C Sandral attended the premises. On arrival, she found a 12-gauge shotgun, an air rifle, a crossbow and a suitcase with ammunition and knives in it lying on the kitchen floor. Another three rifles were located in a high kitchen cupboard. All these items were unsecured when S/C Sandral located them. In his statement dated 17 September 2003 Mr Burns reported that he searched the premises on 9 September 2003, for a firearm, which he thought might be on the premises. He stated that he located a 12-gauge shotgun, a leather suitcase with ammunition and knives in it, an air rifle and a cross bow in the linen press located in the room behind the dining room, and that he also found three rifles in a high kitchen cupboard. He stated that he looked in the rear shed but found nothing.

7 S/C Sandral again searched the premises on 10 September 2003. She asserted that the firearms storage facilities at the premises did not meet legislative requirements.

8 On 22 October 2003 Mr Wiltshire appeared before Corowa Local Court on a charge of "Common Assault" however, this charge was withdrawn. It has been alleged that during their marriage Wendy suffered physical and verbal abuse from Mr Wiltshire. An alleged assault on 7 September 2003 was the basis of the charge of Common Assault.

9 The Commissioner’s delegate formed the view that it is probable that this incident took place, notwithstanding that the charge was withdrawn. Wendy also repeated this allegation in her evidence before the Tribunal. The delegate also formed the view that it is possible that the claims of Wendy regarding her on-going physical and verbal abuse by Mr Wiltshire may also be true. The Commissioner remains of this opinion.

10 On 18 February 2004 Mr Wiltshire appeared before Corowa Local Court on charges of "Possess unregistered firearm-not prohibited firearm/pistol" and 2 counts of "Not keep firearm safely - not prohibited firearm/pistol". All of those charges were dismissed on the basis that there was No Prima Facie Case. Mr Wiltshire was also charged with four counts of "Not keep firearm safely-not prohibited Firearm/pistol" and "Possess/use a prohibited weapon without a permit" and these charges were also dismissed.

Mr Wiltshire's case

11 Mr Wiltshire denies the claims of violence made against him. He asserts that he is not a violent person and that all contrary claims are untrue. He also asserts that he has always had a responsible attitude to firearms and that his behaviour has demonstrated this. He says he is a responsible and law-abiding person, and a conscientious citizen. Mr Wiltshire relies on a number of testimonials from family members and friends to support this assertion. Mr Wiltshire’s daughter, Kellie Wiltshire-Bye, gave oral evidence consistent with these testimonials. He argues that Wendy makes the only accusations that he is a violent person and that no attempt has been made by the Commissioner to corroborate those accusations. The accusations of assault were only made after three failed attempts to obtain an Interim Apprehended Violence Order. The assault charge was subsequently withdrawn by the Police and dismissed by the Corowa Local Court Magistrate.

12 The Police have relied on a statement given by James on 17 September 2003 in which he said that on 7 September 2003 he saw Mr Wiltshire push Wendy. However, in a later statement James stated that he is now unsure what he saw on that occasion. Mr Wiltshire contends that James' earlier statement was taken under duress 10 days after the incident, during which time his impressions may have been influenced, and after sitting in and listening to Jason Burns make his statement. Mr Wiltshire denies pushing Wendy on 7 September 2003, or having assaulted or threatened her on any other occasion. He contends that Wendy was not in fear of him and never has been and submits that her allegations should not be believed.

13 Mr Wiltshire points to the fact that he recently became a foster parent and argues that he would not have been approved for this task if there were any hint of his being a violent person. He said that the approval for fostering followed a Police probity check; a two-day assessment and training course conducted by the Department of Community Services; a three-hour assessment by an independent consultant psychologist; and Referee checks.

14 Mr Wiltshire asserts that he does have a responsible attitude to firearm safety. He points to several statements from family members in support of this contention. While he admitted some breaches of the Act he contends that they are minor and do not make him an unsuitable person to hold a firearms licence. His evidence is that his firearms were kept in a steel cabinet in a shed at the back of the premises. He asserts that the cabinet was secured with a chain to the concrete floor of the shed and was key lockable. He further asserts that Mr Burns had been interfering with the scene at the premises on 7 September 2003 for more than two hours before the police were called.

15 Mr Wiltshire further asserts that all firearms at the premises must have been secured in some form, as the evidence states that no one was aware of their location, or in some cases were not aware of their existence. Wendy stated that she thought he had only one gun and that she had not seen it for 12 years. James stated that he had seen one gun (not including the air rifle), on one occasion but had no idea where it was kept.

16 Mr Wiltshire conceded that he did possess a crossbow and was aware that it was a prohibited weapon. His evidence is that this weapon was disassembled, incomplete and could not be used. He has owned the weapon since he was 16 years of age and purchased it when they were legal. He said that he only ever used it once and found it ineffective. It remained in the house out of sight and out of mind. Mr Wiltshire apologised for his neglect but submitted that it posed no threat to his family or the community.

17 Mr Wiltshire also accepts some responsibility for the unlicensed air rifle and apologised for his neglect. He said that a family friend gave this firearm to James before it was required to be licensed and he had intended disposing of it. There was no ammunition for the air rifle on the premises. He submitted that it was a very low powered rifle and old and it posed no threat to his family or the community.

Findings

18 In the circumstances of this case Mr Wiltshire has raised a number of issues regarding the actions of those in attendance at the premises on 9 September 2003. I agree with his assertion that there are sufficient inconsistencies in their evidence to cast doubt as to what actually transpired on that day. I have formed the view that I have no concerns as to Mr Wiltshire’s fitness or propriety.

19 Nevertheless, I have concerns with respect to Mr Wiltshire’s understanding of the obligations imposed on the holder of a firearms licence. In Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 I stated that the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence.

20 The Tribunal has considered numerous applications relating to the revocation of a Firearms licence where the licence holder has failed to meet the requisite storage requirements contained in Part 4 of the Act. The principles, which emerge from these decisions were summarised by the Deputy President in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at paragraph 19:

“9 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:

- while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]);

- the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:

- the reason for failing to store the firearm safely;

- the length of time the firearm was not stored safely;

- the potential or real danger posed by failure to store the firearm safely;

- the person's previous conduct in relation to storage of firearms and any related matter;

- the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

- the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])

- in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety ( Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

- the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

21 In this matter the evidence shows, and Mr Wiltshire has conceded, that at least one firearm (the air rifle) was not stored safely. It also shows that Mr Wiltshire owned a crossbow, which he knew to be a prohibited item. He did not offer any reasonable explanation for why this was the case. I accept that the crossbow was not operational but it remains a prohibited weapon under the Weapons Prohibition Act 1998.

22 While I am satisfied that an air rifle is on the lower end of the scale of firearm power, the seriousness of leaving an air rifle unsecured is still significant. The risk of theft remains. I do not agree that the threat is significantly diminished because it relates to an air rifle and not a higher calibre firearm. In my view this firearm could equally threaten a person who is not knowledgeable about firearms. It is my view that any firearm, regardless of its type, is an obvious danger to the public when in the possession of a person minded to cause harm.

23 I also have concerns with respect to the storage cabinet that Mr Wiltshire used to store his firearms. Senior Constable Sandral was adamant that the cabinet would not comply with the legislative requirements. In the absence of any evidence to the contrary I accept her evidence.

24 One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. Ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. Wiltshire’s conduct must be viewed with reference to them. Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.

25 Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. In the circumstances I am not satisfied that Mr Wiltshire has sufficient understanding and appreciation of the importance of safe storage. That being the case I could not be confident that his firearms will be stored safely in the future. Mr Wiltshire could take steps to overcome his present lack of understanding of the statutory obligations. At this time however, it is my view that more would be required before the public could be comfortable with Mr Wiltshire again holding a firearms licence. At the bare minimum this would require that Mr Wiltshire completed, to the satisfaction of the Commissioner, firearms training and safety courses relevant to the licence that he seeks.

26 It follows in my view that the correct and preferable decision is to refuse Mr. Wiltshire’s firearms licence application. Accordingly I affirm the Commissioner's decision.

Order

1. The decision of the Commissioner of Police, New South Wales Police Service to refuse Mr. Wiltshire’s firearms licence application is affirmed.